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Strenke v. Hogner3/18/2005
er negligence cases giving rise to punitive damages.
. Accordingly, we expect circuit courts to serve as gatekeepers before sending a question on punitive damages to the jury. We stated this gatekeeper function in Bank of Sun Prairie v. Esser, 155 Wis. 2d 724, 735, 456 N.W.2d 585 (1990) (citing Topolewski v. Plankinton Packing Co., 143 Wis. 52, 70, 126 N.W. 554 (1910)) as follows:
The circuit court should not submit the issue of punitive damages to the jury in the absence of evidence warranting a conclusion to a reasonable certainty that the party against whom punitive damages may be awarded acted with the requisite . . . conduct.
. The court of appeals in Lievrouw, 157 Wis. 2d at 344, restated this articulation of the gatekeeper's function as follows:
Stated another way, a question on punitive damages may not be given to the jury unless the trial court concludes that a reasonable jury could find from the evidence that entitlement to punitive damages has been proven by the middle burden of proof, "clear and convincing evidence."
. When serving in this capacity, we remind circuit courts that punitive damages are not recoverable if the wrongdoer's conduct is merely negligent. Wangen, 97 Wis. 2d at 275. Furthermore, not every drunk driving case will give rise to punitive damages. Only when the conduct is so aggravated that it meets the elevated standard of an "intentional disregard of rights" should a circuit court send the issue to a jury.
IV.
. We turn next to the second question in the court of appeals' certification: must a defendant's conduct giving rise to punitive damages have been directed at the specific plaintiff seeking punitive damages?
. As noted above, Wis. Stat. § 895.85(3) provides:
(3) STANDARD OF CONDUCT
The plaintiff may receive punitive damages if evidence is submitted showing that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff.
. The word "plaintiff" is defined as "the party seeking to recover punitive damages." Wis. Stat. § 895.85(1)(c). From this definition, the federal district court in Boomsma v. Star Transport, Inc., 202 F. Supp. 2d 869, 881 (E.D. Wis. 2002) opined that in order for punitive damages to be available, the defendant must have intended to harm a particular plaintiff.
. In Boomsma, representatives of the estates of five decedents killed in a motor vehicle accident sued a trucking company and its employee driver. The court surmised that, "the thing which must be practically certain is not harm in the abstract, or even harm to a certain class of people (e.g., other drivers on the road), but harm to the plaintiff." Id. Relying on this interpretation, Hogner argues that Strenke's claim must fail, as no evidence exists that Hogner's conduct was specifically directed at Strenke.
. In its certification, the court of appeals questioned the soundness of the Boomsma approach. Certification by Court of Appeals of Wisconsin, Strenke v. Hogner, 03-2527, filed May 18, 2004, p. 5. It feared that such a literal reading of the statute would defeat the purpose of punitive damages of punishing wrongdoers and deterring similar conduct in the future. Id., p. 6. The court then cited several examples to illustrate the dramatic curtailment that the "particular plaintiff" rule would have on situations where punitive damages were always understood to play an important role:
Consider where a drug manufacturer publicly distributes a drug it knows is practically certain to cause harm. Even though the class of people who use the drugs are harmed
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